A FAQ on the SEC Process for Northern Pass

The SEC is a nine-member body established by State law to review applications from large energy facilities to site a project in New Hampshire. The law (RSA 162-H) has a stated purpose to “balance” the need for new energy facilities with the need to protect the State’s environment. The law provides the SEC with the authority to act as a statewide planning board for such projects, essentially trumping the authority of municipal governments to make siting decisions on large energy facilities. The SEC serves as one-stop shopping for all state permits required for the proposed project. The name of the permit that the SEC has the authority to grant is a “certificate of site and facility.”

Who are the members of the SEC?

The nine members include seven commissioners of state agencies and two members of the public. The commissioners serve by virtue of their having been appointed and approved by the Governor and Executive Council to their respective positions. Frequently, a commissioner will delegate his or her SEC participation to a senior staff person within the state agency. The two public members are appointed by the Governor and approved by the Executive Council. Generally, a subcommittee of 7 members (including the two public members) is empaneled to review an individual project application.

What does an energy developer need to submit to the SEC in its formal application?

Northern Pass (NP) submitted its SEC application on October 19, 2015. It includes more than 22,000 pages of material. In the case of NP, which is proposed to be built in 31 New Hampshire municipalities, the application includes a detailed description of the proposed route (including maps), evidence that supports the developer’s claim that the project can actually be legally built on the land it proposes to build on, a description of the physical facility to be built, a review of the proposed environmental impacts of the project, a list of all the state permits required to build the project (such as permits from the Departments of Transportation or Environmental Services), and the fully completed applications for each of those state permits. The SEC forwards these permit applications to the appropriate state agency for review.

How does the SEC make a decision on whether to issue a permit to a large energy facility?

Once an application is submitted by a project developer, it goes through a four-stage review process. First, the SEC must determine that an application is complete. Second, the application must be the subject of a formal public review process. Third, once the public review and comment period is completed, the SEC conducts an adjudicative hearing process to formally review information presented by the applicant and information presented by intervenors. This process is conducted somewhat like a trial, with the subcommittee members as the judges. Much like a trial, the SEC will hear testimony and accept other evidence from the developer and its expert witnesses and from other parties (i.e., stakeholders who elect to formally intervene) and their witnesses. The fourth and final stage of the SEC review process is called the “deliberative phase.” This is when the SEC subcommittee, sitting in public session, actually discusses among itself and determines whether the developer has satisfied every legal requirement under RSA 162-H:16 that it must satisfy in order to obtain a permit.

How long does it take the SEC to act?

The law says that the SEC must act within 12 months of determining an application to be complete. The law also provides that the SEC can temporarily suspend the proceeding if it determines that the public interest is served by doing so.

What choices does the SEC have in deciding whether to issue a permit to a project like Northern Pass?

The SEC subcommittee can decide to deny the project a certificate, to approve an application as proposed, or to approve an application with specific conditions. The SEC has only denied one applicant a certificate in its 40-year history. The Antrim Wind proposal was denied in 2013 largely because of the proposed project’s undue adverse impact on aesthetics. More frequently, the SEC grants a certificate and attaches conditions based on issues raised during the adjudicatory review, which means the project can be built when the conditions are met.

The law provides that in reaching a decision, several specific findings need to be made in order for the SEC to grant a certificate: 1) the developer must have the financial and technical capacity to build and maintain the project; 2) the project will not unduly interfere with the orderly development of the region; 3) the project will not have an unreasonable adverse impact on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety; and, 4) the issuance of the certificate will serve the public interest.

Can an SEC decision to award a certificate be appealed?

Yes, directly to the NH Supreme Court.

May the Northern Pass start digging dirt without an SEC certificate?

No.

How can a member of the public voice concerns about Northern Pass to the SEC?

There are at least two ways.

First is to attend and comment at an SEC public hearing. Within 90 days of determining that an application is complete, and before the SEC subcommittee begins its adjudicative hearing, the SEC must hold one public hearing in each of the five counties to receive public comments on the application. Any member of the public can attend these hearings and deliver oral and/or written comments. Note that the county-by-county information sessions discussed in the previous paragraph are held by the applicant, whereas these county-by-county hearings are held by the SEC.

Second is to become an intervenor in the SEC docket on Northern Pass. Becoming a formal intervenor provides you have formal legal standing to participate in the SEC adjudicative process.

Can members of the public intervene in the SEC proceeding?

Yes. Individuals, businesses, and other organizations and entities may file a petition to intervene in the Northern Pass docket. In short, the petition for intervention must demonstrate a substantial interest that will be affected by the Northern Pass (such as abutting or nearby property owners) or have specialized knowledge that will be helpful to the SEC subcommittee (such as non-profit organizations working in an affected area).

The subcommittee has the authority to limit and structure intervenors, particularly if the number of intervenors is large. For example, the SEC can group like-minded intervenors together to avoid duplication and delay in the adjudicative process.

Can an impacted municipality intervene in an SEC proceeding?

Municipalities that are impacted by a project have very specific standing in the statute, whether they intervene or not. One statutory finding that the SEC must make in reaching a decision is that the proposed project “will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies.”

A simple letter from a municipality to the SEC will have an impact. A decision by a municipality to formally intervene will have an even greater impact.

Does an intervenor need an attorney to intervene?

No. An intervenor can represent him or herself but will be subject to the same administrative procedures by which all intervenors must abide. As a practical matter, an intervenor or group of intervenors might better communicate their interests and concerns through an attorney.

Does an intervenor need to attend all of the hearings?

No. There is no requirement that an intervenor attend any of the SEC proceedings. An intervenor may decide to attend only those hearings that relate to specific concerns raised by that intervenor in his/her petition to intervene. Intervenors often have the opportunity to present evidence and cross-examine witnesses. Aside from the benefit of participating in the hearing itself, obtaining intervention status allows the intervenor to participate in other ways, such as by filing appropriate motions and objections.

Is there a cost to intervene, and what does a petition to intervene look like?

There is no filing fee to intervene in an SEC proceeding. A concise, typewritten letter or more formal petition or motion setting forth the would-be intervenor’s substantial interests or rights that would be affected by the Northern Pass should suffice.

Can NP amend its SEC application after it has filed it?

Yes, within certain limits. NP itself has suggested that the SEC process would likely be the place it will make any major changes to its current proposal.

Is the SEC playing field really level—will the public get a fair shake?

Clearly, applicants start the SEC process with an enormous advantage. They have considerably more resources and experience to deal with the SEC than individual members of the public and stakeholder groups. In 2014 and 2015 the Legislature made modifications to the SEC authorizing statute that attempted to provide greater public access to—and participation in—the SEC process. The SEC is also updating its administrative rules, which will flesh out the details of the SEC process. The jury may be out on the question of whether the playing field is really level. But one thing seems apparent: The less public participation in the SEC process, the likelier that the SEC will issue a certificate to the Northern Pass.